Commonwealth v. Ialongo

• Decision Date: 21 April 2015
• Docket Number: J-S14003-15,No. 1773 EDA 2013,1773 EDA 2013
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. FREDDIE IALONGO, Appellant

COMMONWEALTH OF PENNSYLVANIA, Appellee v. FREDDIE IALONGO, Appellant

J-S14003-15

No. 1773 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

APRIL 21, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the PCRA Order May 17, 2013, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0407461-2006

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:

Appellant, Freddie Ialongo ("Ialongo"), appeals pro se from the order entered on May 17, 2013 in the Court of Common Pleas, Philadelphia County, dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. For the reasons that follow, we vacate the PCRA court's order and remand for an evidentiary hearing.

At trial commencing on October 3, 2007, Michael Klugman ("Klugman") testified that at approximately 6:30 p.m. on January 10, 2006, he was working at the Pink Rose Pastry Shop located at 630 S. 4th Street in Philadelphia when someone he later identified as Ialongo approached the counter, pulled a gun, and demanded money. N.T., 10/3/07, at 73-81. In the search accompanying Ialongo's arrest, the police recovered $212 dollars in twenties, tens, fives, and one-dollar bills, and the serial numbers on someof the five-dollar bills were in sequential order. Id. at 49-55, 151. Counsel for Ialongo stipulated at trial that Larry Frank, the owner of the Pink Rose, would (if called) testify that on the morning of the robbery, he put a number of five-dollar bills into the cash register, and that because he had obtained those bills directly from the bank, they should have been in sequential order. Id. at 132-33.

The jury found Ialongo guilty of robbery, 18 Pa.C.S.A. § 3701(a)(1), and possession of an instrument of crime, 18 Pa.C.S.A. § 907(a), and on January 18, 2008, the trial court sentenced Ialongo to a term of imprisonment of from five to ten years of incarceration for robbery and no further penalty on the second conviction. On May 11, 2009, this Court affirmed the judgment of sentence, and on February 16, 2010, our Supreme Court denied Ialongo's petition for allowance of appeal.

On March 22, 2010, Ialongo filed a PCRA petition, and on April 11, 2011 court-appointed counsel filed an amended PCRA petition. On May 17, 2013, after issuing a notice of intent to dismiss pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, the PCRA court dismissed Ialongo's PCRA petition without conducting an evidentiary hearing. On June 17, 2013, appointed counsel filed a notice of appeal. On July 9, 2013, Ialongo filed a motion stating his desire to terminate the relationship with appointed PCRA counsel and proceed pro se, and on September 3, 2013, this Court remanded the case to the PCRA court to conduct a Grazier hearing onthis request. On February 28, 2014, the PCRA court held a Grazier hearing and determined that Ialongo could represent himself on appeal. On March 4, 2014, the PCRA court ordered Ialongo to file a statement of issues complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Ialongo filed his Rule 1925(b) statement on March 29, 2014, and on June 27, 2014 the PCRA court filed a written opinion pursuant to Rule 1925(a) addressing the issues set forth therein.

On appeal, Ialongo raises the following six issues for our review and determination:

1. Was trial counsel effective when he failed to call a known alibi witness to testify?

2. Was trial counsel effective by agreeing to the stipulated statement (presumably by Larry Frank (store's owner) concerning the sequential order of five dollar bills; The said stipulation was so harmful and prejudicial it was like pleading [Ialongo] guilty in the middle of a jury trial--making trial a foregone conclusion, in which was trial counsel effective when he did not request an [] on the record colloquy required by Davis surrounding a guilty plea?

3. By way of the above mentioned stipulation (by Larry Frank) did counsel give up [Ialongo's] constitutional rights of due process; the 14^th Amendment Confrontational Clause, does counsel deny [Ialongo] his right to cross examine his accuser?

4. Was counsel effective when he did not interview at any time the affiant of said stipulation (Larry Frank) after reviewing the police records and discovery and seeing nowhere in the discovery a statement evermade by Larry Frank concerning the sequential ordered money?

5. Was trial counsel effective when trial judge denied the Kloiber request and trial judge suggested counsel to come up with something a little less[,] was counsel effective when he did not ask for a denial of a line up charge Pa.R.C.P. 2d § 1241 or consideration of suggestiveness of preliminary and or trial I.D. Pa.R.C.P. 2d § 1240? Was trial judge in error for not granting [an] instruction?

6. Was trial counsel effective when he allows the Commonwealth to commit prosecutorial conduct, when trial counsel allows the Commonwealth to use a false statement by way of the stipulation (presumed) by Larry Frank concerning the "sequential order of money"?

Ialongo's Brief at 2-3.

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. Commonwealth v. Ghisoiu, 63 A.3d 1272, 1273-74 (Pa. Super.), appeal denied, 74 A.3d 125 (Pa. 2013). The six issues raised by Ialongo all assert claims of ineffective assistance of trial counsel, for which a petitioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) trial counsel's actions lacked a reasonable basis; and (3) counsel's act or omission prejudiced the petitioner. Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). A claim of ineffectiveness will be denied if the petitioner fails to satisfy any one of these prongs. Id.

For his first issue on appeal, Ialongo claims that his trial counsel rendered ineffective assistance by failing to call three alibi witnesses: Lisa Ialongo (his sister), Ann Ialongo (his mother), and John Hendricks.¹ To begin, both 42 Pa.C.S.A. § 9545(d)(1) and Rule 902(A)(15) of the Pennsylvania Rules of Criminal Procedure provide that when a PCRA petitioner requests an evidentiary hearing, he shall include a certification as to each intended witness, stating the witness's name, address, date of birth, and the substance of the witness's testimony. Commonwealth v. Pander, 100 A.3d 626, 640 (Pa. Super. 2014). In the present case, Ialongo has complied with this requirement, attaching both certifications for the three alibi witnesses as well as signed affidavits from each of them. Amended PCRA Petition, 4/11/2011, Exhibits A and B.

In her affidavit, Lisa Ialongo states that she informed her brother's appointed counsel that on the day of the robbery (January 10, 2006), Ialongo spent the entire day with her. She provides a detailed account of the events of that day, including her call to him asking that he come over because she had just had a fight with her child's father the night before and was afraid of him returning. She recounted eating all three meals during the day (e.g., cereal, lunchmeat sandwiches) with Ialongo, and explained that after dinner they watched TV with her son, during which all three fell asleep. Ann Ialongo testified in her affidavit that she informed appointed counsel ofthe need to talk to her daughter Lisa, as she was aware of Lisa's altercation with her son's father and Ialongo's resulting presence at her daughter's home on January 10, 2006. Finally, in his affidavit, John Hendricks testified about Ialongo's presence at a birthday party for Lisa's Ialongo's son on December 10, 2005.

In this case, the PCRA court did not contest that the failure to call alibi witnesses presents a claim of arguable merit. Instead, the PCRA court and the Commonwealth focus on the second and third prongs of the test for ineffective assistance of counsel. With regard to the second prong, the PCRA court found that appointed counsel had a strategic basis for not calling Lisa Ialongo to testify at trial.² In particular, the PCRA court indicated that inAugust 2002, Lisa Ialongo had pleaded guilty to forgery and related charges, and that because forgery is a crimen falsi crime, it could have been used to question her credibility. As such, the PCRA court determined that "[t]his guilty plea by the defendant's sister would have likely discredited her testimony," and hence "counsel had a reasonable basis for not calling her." PCRA Court Opinion, 6/27/2014, at 6.

The PCRA court, however, failed to conduct an evidentiary hearing at which Ialongo's trial counsel could testify regarding his actual strategies, and thus the PCRA court's decision is not supported by any evidence in the certified record on appeal. The "reasonable basis" prong of the ineffectiveness test is not satisfied merely because appointed counsel (or the PCRA court) is able to concoct a strategic basis that fits with trial counsel's actions or omissions. See, e.g., Commonwealth v. Duffey, 855 A.2d 764, 775 (Pa. 2004) (in the absence of testimony from counsel, the court "should refrain from gleaning whether ... a reasonable basis exists"). "The ultimate focus of an ineffectiveness inquiry is always upon counsel, and not upon an alleged defect in the abstract." Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (quoting Commonwealth v. Colivita, 993 A.2d 874, 896 (Pa. 2010)). Only where the record on appeal clearly establishes thereasonable basis prong may the issue be decided without an evidentiary hearing to determine trial counsel's actual strategies. Commonwealth v. Williams, 899 A.2d 1060, 1065 (Pa. 2006) (citing Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)). Our Supreme Court "has expressed a distinct preference for a hearing on counsel's strategy before venturing to hold that counsel lacked a reasonable basis for his or her actions." Commonwealth v. Gribble, 863 A.2d 455, 473-74 (Pa. ...